Wills and Trusts

What Are Wills and Trusts?

Accidents, disasters, tragedies, and unprecedented things can happen anywhere, often without warning. Hard as it may seem, bad things can occur to you without prior notice. Setting up a will and a trust or both can help you prepare for the future and beat the unexpected.

Wills, often called last will and testament, are legal documents detailing how you want to administer your estate after death and to whom. It lets you choose your preferred guardian for your dependent children and family members with special needs. Will also require you to appoint an executor who will manage the distribution of your estate as well as fulfill all your wishes. Wills are one of the estate planning tools that could help you safeguard your family and properties.

Trustsare legal documents that declare how you want to manage and distribute your estate either during your lifetime or after your passing. Unlike wills, trusts do not indicate who’ll take over guardianship of your young children and incapacitated family members, rather it lets you appoint a trustee who will manage the bequest of your minor beneficiaries and family members with special needs until they reach a particular age or depending on the conditions you set.

If you are over 18 years old and of sound mind, you can start creating a difference in your life that may have a lasting impact on the lives of everyone you love. Discover how to prepare wills & trusts documents in Maine with the help of an experienced lawyer.

How to Prepare a Will?

1. Decide what type of will are you going to prepare

There are different types of wills and below are the most common ones you might want to consider.

• Simple Will – considered the most basic type of will, this elaborates in detail how you want to distribute your estate, all your beneficiaries, and who will be your executor after you died. This type of will can be updated, amended, or revoked anytime during your lifetime.
• Testamentary Trust Will – this will is created within a trust and is commonly known as Trust Will or Wills Trust. Unlike other trusts, this undergoes probate proceedings because they are within a will. Testamentary trust wills effectuate after your death and completion of the probate law process. In a trust will, you will also identify how you want to distribute your asset and who will be your beneficiaries. You will name a trustee who will manage and administer your estate.
• Living Will – one of the most difficult situations you can put your loved ones in is to make decisions about your health and life. Living Wills also called Advance Health Care Directives or Directive to Physicians are legal documents that outline your preferences and wishes with regard to the type and level of medical care you want to receive if you are in a situation where you can’t make the decision yourself. This removes the burden from your family in making decisions against your will. It also provides your doctors and medical team a point of reference for your decisions and confirmation that they can make decisions on your behalf.
• Pour-over Will – this will is a safety vehicle for transferring remaining assets and properties that were not included and transferred to an existing trust before your passing.

2. Make a list of all the assets and properties that you wish to include in your will

Create a list of all the properties under your name. Among all properties in your estate, which are considered the most significant? Decide if all of your assets will be included in the will and if not, which properties will be left out? You can consider the below list in identifying which properties will be part of the will. If selecting which estates should make it on the list is difficult, you can always seek legal service and advice from a reliable wills and trusts lawyer in Maine.                                        Aside from making a list of all your assets and properties, create a list of all your other final wishes and arrangements.

3. Make a list of who will be your beneficiaries

Creating a list of beneficiaries can be complicated and pressuring to some while others can do it in a flash. It is always best to take some time and evaluate your choices. If you have a family, your spouse and children are usually the main casts. They can be followed by your extended family members and closest friends. If you often donate to charities and make contributions to other organizations, you can consider including them in your will too.

Having a list of contingent beneficiaries can make a big difference too in your will just in case you outlive any of your primary heirs. If you fail to appoint contingent beneficiaries and your primary heirs are no longer around to claim their bequest, the state court will determine your beneficiaries in accordance with the intestacy law.

4. Decide who will be your executor

An executor is the one who will carry out all the wishes and intentions you have indicated in your will. After your death, the executor will perform all financial duties after your death including paying your bills and taxes, estate administration, and managing your assets to your beneficiaries. They will also handle the probate litigation process or they can hire a wills and trusts lawyer in Maine to handle the job.

Before appointing an executor, keep in mind to ensure that your appointee is well informed and is willing to take over the role. You would want to avoid choosing someone who will back out on the responsibility. Naming an alternate executor in case your first-person cannot fulfill his duties is a smart move else, the state court will appoint someone to take charge. If you don’t want that to happen, create backup plans.

5. Choose a guardian for your children

One of the most important inclusions of your will should be guardianship of your dependent minors or incapacitated family members. And it’s always recommended to have an alternate guardian in the event your primary guardian can’t serve or is unwilling to take the responsibility. Whether you appoint an individual or a couple, a family member or a friend, as guardians will be up to you. You know very well who can take the role more than anyone else. You are free to take advice from peers but note that selecting a guardian is an important and personal decision.

There are several factors that you can take into account in selecting a prospective guardian for your loved ones including:

• Guardian should be of legal age (18 years and above)
• Family obligations and circumstances
• Are they married and have children? This could be an advantage and disadvantage at the same time
• Will they have enough time to spend with your children?
• If you assigned a couple, are both working? If yes, who will take care of the kids?
• If you assigned a single person and she’s employed, who will look after the children?
• Physical and emotional health
• Consider their current situations and background
• Are they physically capable of taking care of your dependents?
• Do they have psychological issues?
• Evaluate if their moral beliefs and religious background align with you. Remember that they will raise and teach your children as they grow up. They will play a key role in the upbringing of your dependents. Their influences will shape and impact the well-being of your children.
• Financial status
• Are they capable of raising your minors financially?
• What are their sources of income?
• Do they have other dependents? Children? Other family members?
• Can they fund their education?
• Is it best to appoint separate guardians for each of your children?

6. Decide who will manage and administer your children’s property

You have the option to if you want your children’s guardian to be their property guardian as well. One advantage of this is ensuring they will have the financial capability to raise your dependents. You can also choose a different property custodian for your beneficiaries’ bequest until they reach legal age. In this setup, you can avoid conflict of interest as two parties perform different duties as children and property guardians.

7. Make your will

In making your will, you can choose to create your will in 3 different ways namely,

• Get a wills and trusts lawyer in Maine – Legal advice from a competent and credible attorney can make the process smooth for you. Not to mention that they will provide you with a well-tailored solution to your estate plan. This can be costly but definitely worth it. A will well-drafted and free from any ambiguity is the best gift you can give to your family.
• Fill up astatutory will form– Maine is one of the states that provide a standard will form that can be accessed by any resident of the state. These wills are easily available for all residents and anyone can make their will. On the one hand, these are very inflexible. You cannot add or remove any clauses or conditions. Make sure to read all the restrictions of this will before creating one.
• Making your own will – if you have a relatively simple and small estate, you can do-it-yourself your will. Doing your own will is not recommended though if you have a complex estate with conflicting interests with other family members, a long list of debts, and other complicated businesses.

8. Sign your will in front of witnesses

A will is not considered valid unless it has been signed by at least two witnesses and yourself. The two witnesses and yourself must watch each other sign the will document. If you signed the document beforehand, you must acknowledge to the witnesses that the signature in the will is yours.

If you hired a wills and trusts lawyer in Maine, and you are signing in the law office, your attorney can bring two of their employees to act as witnesses. If you prefer to bring your own witnesses, there are factors that you need to consider.

• Witnesses should be 18 years old and above
• They shouldn’t be listed as beneficiaries in your will
• Someone who knows you and is capable of determining your testamentary capacity or your mental ability to make a valid will
• Witnesses should be available to testify in probate law court either by writing or in person that they witnessed you signing your will and that you were in sound mind

9. Keep your will in a safe place

Your will should be kept together with your other estate planning documents. It should be stored in an easy-to-access location yet safe. Have your spouse, children, or any trusted family member or friend the location of your will. Your will is going to lose its purpose if your family will not be able to find it after you die.

How to Prepare a Trust?

1. Determine what kind of trust are you going to set up

There are four common types of trusts that you can consider setting up. A consultation with a reliable wills & trusts lawyer in Maine can help you determine the most suitable trust that will cater to your needs.

• Inter Vivos or Living Trusts- inter vivos means “while alive” or “between the living.” This trust can effectuate during your lifetime. The effectiveness of the living trust depends on when you indicated it to take effect. It could start being valid the moment you signed it or on a particular date, you set.
• Testamentary Trusts- the creation and effectivity of testamentary trusts take place after your death and upon the completion of the probate court proceeding. This type of trust is included in a will and is often called Wills Trust or Trust Wills.
• Revocable Trusts- this trust offers more flexibility. It allows you to make changes and modifications in the conditions, clauses, or even the trust properties included in the will.
• Irrevocable Trusts- also called permanent trust. Irrevocable trusts are inflexible and do now allow any changes once signed and effectuate. A court process is needed if you decided to cancel this trust.

2. Decide which assets and properties are to be included in the trust

Will you proceed in transferring all of your estates? Or will you only move a couple of your assets? You need to make a list of all properties in your estate that you want to transfer to the trust. Assets that you can deliberate can include:

• All houses including your residential home, condos, apartments, vacation houses, etc
• Commercial buildings, and other real estate properties
• Brokerage accounts like mutual funds, stocks, and bonds
• Shares in small businesses
• Any work that has patents and intellectual property rights
• Antique things like any relic or object of ancient times, artwork, furniture, or decorative objects
• Precious metals like gold
• Collections of coins, stamps, and other special assets
• Other non-physical assets like life insurance

3. Determine who will you appoint as trustee

Your selected trustee will perform an important role in your trust. Management and administration of your trust should you become incapable and after your passing will be the responsibility of your trustee. Selecting the best fit for the roles needs extensive consideration.

Before selecting a trustee, evaluate these lists of duties and responsibilities they will perform. Together, consider the list of characteristics that would make a good trustee.

Duties and Responsibilities of Trustees

• Fiduciary duty – your trustee must be able to conduct in the best interest of your beneficiaries
• Trust administration
• Enforce and follow the trust conditions and clauses
• Capable of treating your beneficiaries with fairness and loyalty
• Remove any biases with your heirs
• Act with the intention of preserving your estate
• Keep track of all records and take charge of tax filings
• Manage, protect and control the trust property
• Trust property collection
• Update your beneficiaries with all trust transactions
• Separate personal business with trust funds
• Defend and enforce any claims on the trust
• Determine trust distributions as directed by the trust conditions

Characteristics of a Good Trustee

• Background & sense of judgment- remember that your trustee will manage your estate on your behalf. They will make decisions that could either lead your estate to prosperity or failure. Look for some who shares the same values as you and has no bad records or habits. Someone who also has a good educational background and fitting experience would be an excellent option. A trustee with an impressive investment track record is a plus!
• Ability to commit efforts and time- your prospective trustee should be able to meet the work demands of your estate and family. They should be able to make themselves available when needed and are able to allocate enough time to carry out their trust responsibilities.
• Impartiality among all beneficiaries- it’s important that your trustee is capable of removing all biases among your heirs and is able to treat them with equal fairness. This is a common issue if trustees are family members and conflict of interests cannot be avoided.
• Great Interpersonal Skills- your trustee will be dealing with all of your beneficiaries. He should be able to work well with all parties involved in a calm manner. It would be a plus if he could establish a good rapport for seamless communication. To avoid any strained relations between your trustee and your heirs, look for someone who is not easily intimidated. Arrogant ones should also be avoided.
• Attention to Detail- trustees are expected to perform accounting and reporting duties to beneficiaries. They are also in charge of all the billings and tax-related responsibilities. Great attention to detail plays a significant role in the success of trust management. With all the responsibilities in the hand of a trustee, being able to maintain a good record of all trust transactions is critical.

After selecting your best trustee choice, consider appointing a successor trustee. If your primary trustee cannot uphold his duties, you have a successor who can take over the position. The state court would nominate a successor trustee if you did not assign one.

4. Choose who will be your trust beneficiaries

If you are married, your primary beneficiary is your spouse and children. If you are unmarried, your siblings, parents, and other extended families can be your beneficiaries. The list is not only limited to your family, you can extend your trust to your close friends or a charity that you support.

5. Set up the trust document

In setting up a trust agreement document, you need to consult and seek legal services from a wills and trusts attorney in Maine. Preparing the document needs legal work and a well-rounded lawyer in estate planning can offer you an end-to-end service. You can be assured that your needs and your family’s future are in good hands.

6. Sign the trust agreement and have it notarized

Having your trust agreement notarized prevents fraud and confirms the validity of the agreement. Below are the additional benefits of notarizing your trust document.

• Guarantees your identity as trustor
• Ensures that the trust was signed without any duress
• Authenticates and certifies all information in the trust agreement
• Makes the trust document legally binding
• Assures certainty of verification even if a long time has passed

7. Fund your trust, and transfer assets into the trust name

Trusts require properties to be under the trust name. This process needs significant paperwork as you need to create new property dees transferring your assets from your name to the name of the trust. A wills and trusts lawyer in Maine is all you need to assist you with all the legal work needed for the transfer.